Strasbourg, 12 March 2007
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary : Reply submitted by the delegation of Iceland
Part I - General context concerning the judiciary
1. Is there possible interference of the legislative power concerning judges? If yes, please specify.
Answer: In Chapter V of the Constitution of Iceland no. 33/1944 the independence of the Judiciary is emphasized, there it is stated the judicial order is only to be decided by law. The Act on the Judiciary no. 15/1998 decides the structure of the Icelandic Judiciary, states the number of courts and judges, defines their rights and duties and the constitution of the Judicial Council. The legislative power also decides the manner in which judges’ salaries are determined. In spite of the constitutional guaranties the Parliament can thus have a significant influence on the Judiciary by its legislation about the means and functions of the Judiciary.
2. Is it possible for the legislative power, the Parliament or the executive power/the government to order investigations or to establish commissions :
§ in general concerning judges? If yes, please specify.
§ concerning judicial performance?
§ concerning facts already submitted to courts?
§ concerning procedural acts (eg. telephonic tapping, police custody)
3. Is there possible interference of the executive power concerning judges?
4. If yes, is it possible for the executive power to interfere:
§ in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)
Answer: The Minister of Justice appoints judges after receiving recommendation from an evaluation committee (for the lower of two levels) or the Supreme Court respectively. The Minister is not bound by those recommendations. The answer to the other points is: No.
§ in designation of presidents of courts? (if yes, please specify which authority from the executive power)
Answer: The Minister of Justice appoints the presidents of the courts (lower level) on the nomination of the Judicial Council. Judges at larger courts respectively have previously elected the president, in courts with only two judges the Judicial Council recommends who shall be president. The Minister is not bound either by named election or appointment. The President of the Supreme Court is elected by the Justices.
§ in management of courts? (if yes, please specify which authority from the executive power)
Answer: No, only indirectly through budgetary funds, and the appointment process.
5. Is the judicial staff working under the authority of:
§ a judge?
§ the president of the court?
§ the Ministry of Justice?
Answer: The judicial staff works under the authority of the president of each court.
6. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court?
§ to distribute the work between judges?
§ to act as a disciplinary authority vis-à-vis judges?
Answer: Yes, to an extent.
§ to intervene in the career of judges?
§ other? If yes, please specify.
Part II – General concerning Councils for the Judiciary
7. Is there a Council for the Judiciary in your judicial system?
8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)
Answer: Dómstólaráð (in Icelandic), translates the Judicial Council.
9. What is the legal basis for the Council for the Judiciary:
§ the Constitution?
§ the law?
§ other? If yes, please specify.
Answer: The law, the Act on the Judiciary no. 15/1998.
10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)
Answer: The idea of the division of powers is traditionally and in constitutional theory acknowledged as the foundation of the Icelandic state. It was however first in 1989 by the Act on the Separation of Judicial and Executive Powers at the District Level no. 92/1989 that the lines between the judicial and the executive functions were drawn clearly. The Act on the Judiciary no. 15/1998 was the first of its kind and by which the Judicial Council was established. Thereby internal affairs of the courts, previously handled by the Minister of Justice, were moved under the jurisdiction of the Council.
Part III - Composition
11. What is the composition of the Council for the Judiciary:
§ Number of members?
§ Qualification of the members?
§ For the “judges” members, do they need specific qualifications or experiences?
§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions)
Answer: The Judicial Council is composed of five members. Four of the members have to be acting judges, thereof two chief judges. No further qualifications or specific experiences are required by the law. One member must be a non-judge, other than that not specified.
12. Please describe the whole procedure of appointment:
§ Who designates the members (judges or other institutions or authorities – please specify)?
§ What is the appointment system (voting, individual candidates, designation, etc.)?
Answer: The members of the Judicial Council are appointed by the Minister of Justice. Four of which have to be judges. Those have previously been elected, two by the district court judges from among their group, two are elected by the group of the presidents of the district courts from among their group. The results of the elections are reported in the form of nominations to the Minister. The one member, who is not an acting judge, is chosen by the Minister without a nomination. The Minister is not bound by the nominations. This process is prescribed by the Act on the Judiciary.
13. How is appointed the President and/or Vice-President of the Council?
Answer: The Judicial Council elects its chairperson as from the beginning of each calendar year. There is no provision concerning a vice chair.
14. What is the term of office for a member of the Council?
Answer: The Council is appointed for a term of five years, the term of one member expires each consecutive year. Members can only be chosen for two terms in succession. Substitute members are chosen in the same way.
15. May a member be removed from office against his/her will and, if so, under what circumstances?
Answer: A member can cease to hold office or be removed from his or hers duties as a member of the Council, the terms for which are not stated.
Part IV - Resources
16. Where does the Council receive its financial resources?
Answer: From the Budget of the State, a part of the budget for the Judiciary is assigned to the Judicial Council.
17. Does the Council have its own staff?
18. If not, is the personnel provided by:
§ the Ministry of Justice?
§ the Supreme Court?
§ other institution? Please specify
19. What is the staff number?
20. What are the qualifications of the staff?
Answer: A degree in law.
21. Must the staff be composed, albeit only in part, by judges?
22. What are the tasks of the staff of the Council:
§ preparing materials for the Council members?
§ providing them with analysis and evaluation of the courts’ practice?
§ other? Please specify.
Answer: Budgetary planning and making suggestions about the division of the allowances between the district courts. General secretarial functions.
Part V - Tasks
23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):
§ in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?
§ in area of initial and/or continuous training for judges and/or courts’ staff1?
§ in area of courts’ performance in general (assessment of quality of court performance2, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?
§ in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements3)?
§ in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?
§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?
§ in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify
Answer: The functions of the Judicial Council are: 1) to control and be responsible for the financial affairs of the district courts, make proposals to the Minister of Justice on financial appropriations concerning the Judiciary, and to decide how its budget devided; 2) to determine the number of judges and staff members of each district court, decide at which district court a judge shall be located and issue general rules on transfer of judges between district courts when needed; 3) nominate a judge for the office of president, at larger courts according to election results; 4) take disciplinary action in respect to presidents, may recommend his/her removal from that office to the Minister of Justice; 5) it makes recommendations in respect of appointment of ad hoc judges; 6) to be in charge of continuous education and training for judges and legally educated staff of courts; 7) to issue rules concerning standard procedures in the functions of the courts, apart from rules on the judicial process itself; 8) to collect data on judicial performance from the courts, such as number and type of cases, duration of the procedure and the results of cases, and make proposals in respect to increasing efficiency and speediness in the handling of cases at the district courts; 9) to issue, as may be necessary, rules on the presence of judges at their workplace, on vacation arrangements and on leaves of judges; 10) to represent the district courts to executive authorities, the media and others; 11) to make proposals in respect to any matter conducive to improvements in the functions of the district courts or in respect to legislation applicable to them; 12) publish Annual Reports on the functions of the courts and the Council.
24. Does the Council have investigation powers? If yes, please specify
25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe.
Answer: Every three months the Council requires district courts to send reports on number and types of cases that have been completed and of those still being tried, once a year a more detailed report is required on the functions of each court and individual judges, also the courts send report to the Council twice a year on financial spending and future needs. The Council collects this data and analysis it, action is taken if need be.
26. What are the types of norms that the Council can issue:
§ opinions on the functioning of the judiciary?
§ instructions to the courts?
Answer: All of these above, see answer to question no. 23.
27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.
Answer: Yes, in the Act on the Judiciary no. 15/1998.
28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?
Answer: Mostly concrete and specific.
29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?
Answer: No, there is no code of ethics for judges.
30. Does the Council handle external relationships of the courts:
§ has it a public relations department?
§ how does it ensure the transparency of its functioning and organisation?
Answer: One of the tasks of the Council concerns relations with the executive on behalf of the courts, and is to represent matters of importance to the public.
31. Are decisions of the Council published and available to all?
Answer: Resolutions and rules are announced to all district court judges, besides the council has a web page where relevant information is published. Also an Annual Report is issued.
Part VI – Assessment of the self-governance and the independence of the judiciary
32. To what extent is the work of the Council influenced by:
§ the executive power?
Answer: As to the executive power mainly by the fact that the ministry of Justice has much influence on the decision of the budget for the courts. Also the Minister of Justice has the final say in respect to appointments of judges, permanent and ad hoc, and that of presidents of courts since he/she is not bound by nominations or recommendations made by the Council, finally the minister appoints he Council and furthermore one of its members without nomination.
§ the legislative power?
Answer: In the sense that the form, functions, responsibilities and powers of the Judicial Council are determined by legislation, also the Parliament decides the State’s Budget.
33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?
Answer: The rule of division of powers between the executive, legislative and judiciary is a fundamental rule of the Icelandic constitutional law. The Council is a part of the Judiciary. No, it is not subject to direct control by other entities of the State.
34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?
Answer: When the Council was founded in 1998 it overtook many function the ministry had before. As stated above the Minister of Justice still has power in respect of appointments and is influential when it comes to recommendations for the budget of the judiciary as well as changes in relevant legislation. In other respect the Ministry has no power over the Council.
35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?
Answer: There is no connection between the Supreme Court and the Judicial Council. Presidents are independent in their ruling of the courts, but answer to the Council in respect to expenditure, information on data and implementation of rules the Council has set.
36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?
Answer: The judicial system is of two levels: district courts and the Supreme Court. In the Act on the Judiciary there are special provisions concerning appointments to and the function and finances of The Supreme Court, The Supreme Court does not fall under the powers of the Judicial Council.
37. Who decides which the priorities of actions of the Council are?
Answer: The members of the Council at general meetings.
38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?
Answer: No, they are final.
39. Which instruments or practices are used by the Council:
§ to guard the independence of judges?
§ to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
§ to intervene in case of attacks against its own interests4?
§ to improve the working methods of judges?
Answer: The Council may decide on and comment publicly on specific subjects, write letters to the Ministry and the Parliament. As to the working methods of judges it enacts general rules and may announce them binding on judges.
Part VII – Future trends of Councils for the Judiciary
40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.
Answer: No serious problems.
41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.
Answer: It is being discussed whether an Appeal Court for criminal cases should be founded. If this will be realized the question will arise whether that court will come under the administration of the Judicial Council. At the same time a change in respect to the Supreme Court also joining the Council will probably be debated.
42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?
Answer: Not directly, but representatives from the board of the Judges Association and representatives of the Judicial Council meet for consultation once or twice a year and work together on the issue of the training of judges and also when pressing issues arise.
43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
§ concerning the national actions of your Council?
§ concerning international co-operation?
Answer: Not a member.
44. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.
Answer: The Judicial Council would be strengthened if the budget was less dependent on the goodwill of the Ministry of Justice, also it would be considerably strengthened if the Supreme Court and hopefully a new Appeal Court came under its authority. This would of course mean some amendments in respect to the composition of the Council and its functions.
Part VIII – Countries without a Council of the Judiciary
45. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?
46. How and by whom are judges appointed and promoted?
47. Does any authority (body) independent5 of the government and the administration take part in the appointment and promotion process:
§ If yes, how is this authority composed? Is a certain share of judges fixed?
§ How are the members selected?
§ what are the detailed competences of the authority with respect to the appointment and promotion of judges?
48. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
49. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?
1 Please consider the following statements contained in the CCJE’s Opinion No. 4:
- para. 17: "In order to ensure proper separation of roles, the same authority should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judiciary or other independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.";
- para. 18: "Those responsible for training should not also be directly responsible for appointing or promoting judges. If the body (i.e. a judicial service commission) referred to in the CCJE's Opinion N° 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks.".
- para 47: “The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that appropriate procedures allow a ready adjustment of the organisation of courts to changes in the caseloads. In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring should be the independent body (…); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.”
- para 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long-entrenched and democratically proved systems.”
- para 55: “When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases. “
5 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).